Responding to Mental Health Parity Model Disclosure Request Form

In June 2017, the Departments of Labor, Health and Human Services and Treasury released a draft model form that participants may use to request mental health/substance use disorder (MH/SUD) limitation information from their health plan or issuer under the Mental Health Parity and Addiction Equity Act (MHPAEA). Participants are not required to use the “Mental Health and Substance Use Disorder Parity Disclosure Request” form when requesting information about MH/ SUD benefits, but its availability increases the likelihood that plan sponsors will receive more detailed requests for information on MH/SUD benefits and parity requirements.

Mental Health and Substance Use Disorder Parity Disclosure Request Form

On the model form, participants, providers and authorized representatives (a “submitter”) may make a general information request or a claim/denial information request. The form’s general information request allows the submitter to request information on the plan’s limitations on MH/SUD disorder benefits, or its limitations relating to a specific MH/SUD condition or disorder. The form’s claim/denial information request allows the submitter to receive information about a claim that was or may be denied or restricted.

Regardless of whether the submitter indicates he or she is pursuing a general information request or claim information request, the request form asks the plan or issuer to provide the following information within thirty (30) calendar days of the date of the request:

The specific plan language regarding the limitation and all of the medical/surgical and MH/SUD benefits to which it applies in the relevant benefit classification;

The factors used in the development of the limitation and the evidentiary standards used to evaluate those factors;

The methods and analysis used in the development of the limitation; and

Any evidence to establish that the limitation is applied no more stringently, as written and in operation, to MH/SUD benefits than to medical/surgical benefits.

Responding to a Request

While intended to provide clarity, the model form leaves plan sponsors and third party administrators (TPAs) with plenty of questions. ERISA requires numerous disclosures around plan documentation and the claims procedures. MHPAEA adds additional requirements, but they generally run parallel to the claims procedures. Given all of the required disclosures, how should a plan sponsor respond to this type of request? Does a plan sponsor need to respond and, if so, how much information should it provide? Will TPAs cooperate with the plan sponsor to ensure the submitter receives the appropriate information?

Unfortunately, like most issues related to MHPAEA, the answer is complicated. The information requested is likely burdensome to prepare and not easily accessible for both the plan sponsor and TPA. For most self-insured plans, the TPA likely made the decision related to any limitations, such as prior authorization, and may consider it proprietary information and not want to provide it. Further, under ERISA, the plan may not even be under any obligation to provide the information.

Given the uncertainty around a response, the plan sponsor should first discuss with its TPA how it envisions handling requests. While the TPA may hold the requested information, the onus is on the plan to comply with ERISA. As such, the plan sponsor must be aware of any information requests and have control over the information provided to a submitter.

Second, a plan sponsor should discuss with its legal counsel a process for responding to a request and determine the type of information it will provide to a submitter. While intended to be a useful resource for participant and plans, the model form does not track the language of any regulation closely, leaving substantial ambiguity about what information must be disclosed.

Finally, after receiving a request, the plan sponsor should consider speaking with the submitter to better understand the reasoning behind the request. By doing so, the plan sponsor may be able to provide the submitter with the relevant information related to his or her concern without needing to prepare the burdensome and lengthy documents necessary to comply with the model form’s request.